[00:00:00] Speaker 05:
The case number 22-1052, Amazon services LLC petitioner versus United States Department of Agriculture.

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Mr. Murphy for the petitioner.

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Mr. Hinshaw for the respondent.

[00:00:12] Speaker 00:
Good morning, counsel.

[00:00:13] Speaker 05:
Good morning, your honor.

[00:00:14] Speaker 00:
Mr. Murphy, please proceed when you're ready.

[00:00:17] Speaker 05:
May it please the court, good morning.

[00:00:18] Speaker 05:
I will plan to reserve three minutes for rebuttal.

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The department's expansive and evolving view of liability cannot be squared with statutes.

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The words that Congress chose are aid, vet, pause, or induce.

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They play a key role in the statutory scheme by keeping liability for acts of third parties within bounds.

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These words are not novel, complicated, or ambiguous.

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As the Supreme Court recognized in Rockster and Mosul,

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Secondary liability is deeply rooted in the common law and reflects a century-old view of liability.

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The Supreme Court recognized that secondary liability has mens rea requirements in Rosemont.

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This court recognized it in Albertson, and the Tenth Circuit recognized it in Albertson, which interpreted nearly identical language in a department regulation.

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The department's attempt to strip mens rea from secondary liability is especially concerning here, because the so-called benefits provided that were decided by the official officer are entirely legitimate business services.

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There was never any dispute that the services are legal, are available to millions of sellers, and that the importation here was done before the products ever reached the customer.

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Can I ask you, your position rests on the proposition that we ought to read

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knowingly and substantial assistance into the terms of the statute.

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And I guess I want to know, what do you think had to be known?

[00:01:50] Speaker 05:
Well, I think we just revert to Halberstein, which is there have been a number of formulations over the years that have kind of condensed into a nucleus reflected in Halberstein.

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Knowledge of the wrongdoing by the third party and substantial assistance to that wrongdoing.

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So it's the wrongdoing.

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It's knowledge of the wrongdoing that you think is

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Not essential, not knowledge of importation.

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Absolutely.

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And the reason for that is if we had knowledge just that third parties are importing things, that's an incredibly odd concept.

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That's just knowledge that third parties use their services.

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And this actually brings up the issue that was raised last week in the Twitter versus Tomnet case, where the focus is actually on the legitimate business services that are provided by Twitter and that are misused by certain entities.

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But I guess, I don't know that you have to

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It's up to you how to pitch your argument, obviously, but I don't know that you have to have, you have to win on knowledge of wrongdoing.

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Because as I understood your argument, there's a couple of things going on here.

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First, there's the importation.

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And then there's the question of whether the importation is wrongful.

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And at least in some of the cases, the importation is a sensibly wrongful because of the lack of a certificate.

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And so part of your argument is,

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Well, you need knowledge of the wrongdoing, meaning Amazon actually has to know something about the fact that the requisite certificate wasn't supplied.

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But part of your argument I thought was, well, Amazon at least has to be involved in the importation in some way, and it doesn't have anything to do with the importation.

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That is correct.

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And that doesn't have to do with, but that latter part doesn't have anything to do with knowledge of the wrongdoing.

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And I guess the reason I'm asking this is the statute is interesting because the terms aid abet and then cause and induce

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They're not tied necessarily to the violation.

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There's another provision that talks about violations when it allows for civil penalties or criminal penalties.

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And as to that, knowingly is attached to criminal penalties.

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And knowingly, I think somewhat unfortunately for you, is not attached to civil penalties.

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I mean, you may say that, well, we should read it in any way.

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But the fact of the matter is you'd have to prevail on that.

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But on the antecedent question of the importation or the movement, that's where aid in the bed comes in.

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But it's not in this.

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It's not in the provision about violation.

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It's in the provision about movement slash importation.

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Right.

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The exact search for a term is aid, a bet, pause, or induce the carrying, entering, importing, mailing, shipping or transporting.

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Right.

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All of those things were done by third parties, by these three third party sellers before any of these products ever reached Amazon.

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The carrying and so forth across the board.

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And importation is defined as bringing into the territorial limits the United States.

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So it's not just carrying some random place.

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It's carrying it into the territorial limits of the United States.

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That specific act was done by these third-party sellers and completed before these products ever reached Amazon.

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Right.

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And all of that has nothing to do whether there's knowledge of the violation, as far as I can tell.

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Because suppose, just for the sake of argument, that

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we were to agree with you that aid and abet just carries with it this concept of knowing and substantially assist.

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Let's just hypothesize that's true.

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The government's going to resist that and there may be reasons to resist that, but let's just hypothesize that's true.

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Even if we give you the benefit of that, what that would mean is that we would read it into the provision that has to do with carrying, importing, mailing, shipping, transporting, because that's where aid and abet appears.

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It doesn't say that with respect to violations.

[00:05:31] Speaker 05:
Well, I think you have to know, I think in order for the knowing knowledge element of Albert Sam to make any sense here to see where it is wrong of wrongdoing with respect to the principal violation, principal violation here is not just carrying something, it's carrying something out certificate.

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So in order for.

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any aiding or abetting to really make sense here.

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There has to be knowledge of the wrongdoing and the wrongdoing is the carrying across the border.

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I don't understand why you say that's the only way to make a sense of it because it seems to me it at least would be sensible to say you have to aid and abet the importation in order to come within the purview of the statute to begin.

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Whether then you have to know about the violation is a subsequent question.

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We could have a debate about that.

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But you at least have to

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you at least have to play a substantial role, meaning substantially assist, and maybe you can attach knowingly, I don't know if you need to, but you could, to, with respect to the importation, if you don't substantially assist the importation or play a meaningful role in the importation or participate in the importation, then you're not within the first layer of the statute to begin with, so you never get to the question of whether you have to know the violation.

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I think that's the oddity here, which is the Parliament has

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face a test on not actually providing benefits or inducing or causing any actual importation.

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The department has created liability based on having business services or kind of creation of demand or reason why third parties would want to import things.

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And so even if we ignore the knowledge element entirely, we have to look at assistance.

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What actual assistance was provided here in the third parties doing the carrying, transporting, so forth?

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Right, and the way you just put it is the assistance in the carrying, not assistance in the violation.

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Right.

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Assistance in the carrying, which they just seem to me, maybe I'm wrong about this, but they seem to me to be conceptually

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at least potentially conceptually distinct and distinct in the statutory scheme, because aid and abet modifies, carry, import, mail, ship, all that, not violate.

[00:07:40] Speaker 05:
Right, yes.

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The actual carrying or so forth is not the violation, but if we look at, because there are actually three distinct elements from ALVERSTAM.

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There's the awareness of the wrongdoing, and then there's also the knowing and knowingly providing substantial assistance.

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So even if you ignore the knowingly part or focus that just on knowing that somebody is carrying something, you still have to have the general awareness of the wrongdoing.

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And there's simply no awareness whatsoever here.

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And you can't look at the fact, you can't look broadly at the idea that there might be knowledge that some third-party sellers somewhere out there are illegally importing because that really brings us into

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the problem that the government identified in its own position in the Twitter case, where it noted, and this is page 17 of the government's amicus brief in the Twitter case last week, the knowing and substantial assistance requirement takes on particular importance where the theory of liability rests on the defendant's routine business activities for an action.

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And this court and several other courts have noted that these

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knowledge and substantial assistance requirements are particularly important when you're talking about ordinary business activities.

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Cases like Monson, cases like Woodward, which is where the Elberson test actually comes from, Woodward and the Fifth Circuit, talk about how these requirements actually scale up when you're talking about ordinary business activities.

[00:09:09] Speaker 00:
But it seems to me that all that can go to the question of whether there's substantial assistance in the importation.

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not whether there's substantial assistance or knowledge with respect to the violation.

[00:09:21] Speaker 05:
Right.

[00:09:21] Speaker 00:
And this case actually can be resolved on the substantial assistance element because there was no assistance at all.

[00:09:27] Speaker 00:
With respect to what, though?

[00:09:28] Speaker 00:
No assistance with respect.

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The way I'm thinking about it is there is not, your position could be, there's not assistance with respect to

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the importation, not with respect to whether there's not where assistance with respect to the importation without a certificate.

[00:09:42] Speaker 05:
There certainly is no assistance with respect to the lack of a certificate.

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Amazon is not responsible for that.

[00:09:51] Speaker 05:
It's in JAA 281, 282, and then the 300 to 310 range in the China appendix.

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But even beyond that, if we drill down to what assistance, what in this record shows that Amazon actually provided some measurable assistance to these third-party sellers in carrying something across the border?

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The answer is no.

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Not a single thing.

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Amazon didn't provide any transportation.

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Amazon didn't order these products.

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The only thing in the record the government can point to is that Amazon has contracts with third-party sellers which specify that they are responsible for importation.

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And this is not an issue of delegating Amazon responsibilities.

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That was that's an argument that's played out in this proceedings.

[00:10:35] Speaker 05:
That is not what Amazon's argument here is that those responsibilities rest in the first instance on the third parties who are doing the importation and the contract reflects that and reinforces that.

[00:10:48] Speaker 01:
Council, in rereading your brief several times,

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and the argument that was presented by the department.

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What struck me is that you have argued this case as though nothing relevant occurs until the goods are in Amazon's facility.

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And my question is, in one sense, that argument could apply to ship owners, to freight carriers, airplane owners, et cetera.

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But Congress is aware that the department doesn't have offices all around the world.

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and that of the two parties involved with relation to goods coming into this country from abroad, who is in the better position to be able to monitor what is happening?

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And Congress has made a judgment, arguably,

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when it gives the department such very broad authority.

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And clearly your client does not have to accept any of this responsibility.

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But it as the nearest person subject to regulation is

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As Congress has understood it and the department has interpreted its power over these years, as I understand it, it's that your client is in the best position to know the type of information that is critical to the public health and safety and agriculture in this country.

[00:13:23] Speaker 01:
And what I didn't see in your argument is any acknowledgement of the relative position of the parties or of why Congress would not carry over this basic approach

[00:13:51] Speaker 01:
that applies to contract law in all respects in this area where you just live through what happens when things don't work as they're supposed to.

[00:14:07] Speaker 01:
And the sort of mad cow disease, the Ebola infections, the COVID-19 infections, how else

[00:14:21] Speaker 01:
can a government protect itself other than if the foreign manufacturer takes the initiative and contacts Amazon about how it wants to sell using its site, then certain responsibilities follow.

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Even though, as you have argued,

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a contract arrangement can be written as you're arguing.

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But I don't see where that takes into either consideration of how the department has been interpreting its broad power for many years, how the courts have viewed that power.

[00:15:20] Speaker 01:
And what's really going on here?

[00:15:25] Speaker 01:
How do you respond to that?

[00:15:29] Speaker 05:
So there's a lot there, and I've run through my rebuttal time, if I may.

[00:15:32] Speaker 05:
Yeah.

[00:15:33] Speaker 05:
Thank you.

[00:15:34] Speaker 05:
So let me start with, you mentioned ship owners and freight carriers.

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Those and other entities who engage in specific acts relative to deportation, that is directly under the statute.

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That's carrying, the transporting, shipping, mailing, and so forth.

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So when Congress has identified these specific activities that constitute importation of concern.

[00:15:57] Speaker 01:
Council, I understand you are able to draw these types of distinctions.

[00:16:02] Speaker 01:
What I'm trying to understand is congressional intent here as interpreted by the department over all these decades.

[00:16:14] Speaker 05:
So I want to resist the premise that the department has this history of interpreting these regulations as imposing strict liability for acts of third parties.

[00:16:30] Speaker 05:
That is not the case.

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There are five cases cited in the department's brief, excuse me, in the judicial officer's decision, pages 21 to 22.

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Three of those five that are cited for proposition

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that the department has long interpreted its regulations as imposing certain liability for secondary liability, do not even use the words of secondary liability.

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The other two, Stephen Thompson and John Casey cases, those actually involve liability for acts of a principle.

[00:16:58] Speaker 05:
But John Casey and Stephen Thompson cases involve liability for their own acts.

[00:17:02] Speaker 05:
So in those two cases, the department is not advocating advancing a position that there is this broad liability.

[00:17:09] Speaker 05:
So we can compare that to the four department cases cited in the FedEx opinion at footnote four.

[00:17:16] Speaker 05:
That is a great distinction because three of those four opinions in FedEx split with the four actually do involve an identifiable page in the Federal Register where the Commerce Department, fully different statute, says we, the Commerce Department, are interpreting our regulation as saying there is strict liability for secondary liability.

[00:17:37] Speaker 05:
And so we have a history that's totally different there.

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We also have Congress saying, I accept that history.

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In an Act in 50 USC 4826 Subpart A in 2018, Congress said the borders of the department existing before the state in 2018, that's what we want.

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So we have FedEx and the history is completely different.

[00:18:00] Speaker 05:
So the policy argument,

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Who is in the best position to govern importation in the United States?

[00:18:06] Speaker 05:
It's the customs agencies, it's the inspectors and so forth.

[00:18:09] Speaker 05:
So the question I think you're advancing is, well, isn't Amazon also in some position?

[00:18:14] Speaker 05:
Well, that implies a degree of omniscience that Amazon simply does not have.

[00:18:20] Speaker 01:
And there's nothing in this- No, no, no, Council.

[00:18:23] Speaker 01:
Don't take the question beyond its reasonable grounds.

[00:18:29] Speaker 01:
We're not talking about omniscience.

[00:18:32] Speaker 01:
We're talking about when Amazon is contacted, assuming it is not the initiator here.

[00:18:40] Speaker 01:
It can ask questions just as it asks, well, what are you talking about?

[00:18:45] Speaker 01:
What manufactured product?

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How big is it?

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What are you going to ask as a price?

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All these kinds of questions.

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I mean, these are not out of the ordinary.

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And I understand

[00:19:02] Speaker 01:
why your client might opt to proceed as it does.

[00:19:10] Speaker 01:
But I mean, why would Congress sanction that type of behavior?

[00:19:15] Speaker 01:
In other words, it doesn't care what comes into this country until it actually gets into this country.

[00:19:27] Speaker 05:
And that I think illustrates the problem with having a test as expansive as benefits provided or who's in a better position or best position for this or that.

[00:19:38] Speaker 05:
Because conceivably, there's all kinds of other entities who could also ask questions.

[00:19:43] Speaker 05:
A consumer could ask questions.

[00:19:44] Speaker 05:
Did you have a certificate when you sent me this product from Hong Kong?

[00:19:47] Speaker 05:
There's just not a practical limitation.

[00:19:49] Speaker 05:
And I think what you're asking is, shouldn't we be looking at these larger policy issues

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That is the very debate that played out in the central bank, where the majority in central bank says, OK, we have a question of aiding and abetting liability.

[00:20:06] Speaker 05:
But we don't have a statute that says it's there.

[00:20:08] Speaker 05:
How are we supposed to resolve this?

[00:20:09] Speaker 05:
The dissent says, well, this is remedial legislation.

[00:20:12] Speaker 05:
Let's just go ahead and infer it based on these policy objectives.

[00:20:16] Speaker 05:
And the majority says no.

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When we're talking about aiding and abetting, we look to see if there is statutory warrant.

[00:20:23] Speaker 05:
There isn't.

[00:20:23] Speaker 05:
End of discussion.

[00:20:25] Speaker 05:
And then it went on to say, you know, even though these policies that are hypothesized and so forth at Central Bank, that might be good, that might be something useful for Congress to do.

[00:20:34] Speaker 05:
And a good lesson from Central Bank is, Congress is something.

[00:20:37] Speaker 05:
Congress changed the law.

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The new law is 15 U.S.C.

[00:20:42] Speaker 05:
78 T subpart B.

[00:20:45] Speaker 05:
The upside, I think, of all that is the policy arguments are properly directed to farmers.

[00:20:52] Speaker 00:
You wouldn't dispute the proposition that because of the services that Amazon provides to sellers overseas, it's more likely that sellers overseas are going to import goods into the US to reach a US audience.

[00:21:06] Speaker 05:
Well, I think that may be correct in some instances.

[00:21:08] Speaker 00:
I would be pretty speculative because I don't know what the sales channels are for these three sellers.

[00:21:13] Speaker 00:
Is it speculative at all that Amazon, Amazon advertises itself rightly as opening up an amazing marketplace to the folks with whom Amazon engages in either sell, sell.

[00:21:25] Speaker 00:
Is it selling on Amazon?

[00:21:26] Speaker 00:
I can't remember the exact products.

[00:21:29] Speaker 00:
Selling on Amazon and fulfillment by Amazon.

[00:21:31] Speaker 00:
And part of the pitch, totally understandably, is, look, if you work with us, the seas are going to open for you because we have a gateway to a marketplace that you'd otherwise have a lot more difficulty reaching.

[00:21:42] Speaker 05:
Yes.

[00:21:43] Speaker 05:
I mean, I would imagine that there are third-party sellers in foreign places who do import third things into the United States to pay for that very recently.

[00:21:51] Speaker 00:
Right.

[00:21:52] Speaker 00:
And apropos of what Judge Rogers is asking, it could be the case.

[00:21:56] Speaker 00:
I mean, Amazon could do more.

[00:21:58] Speaker 00:
to make sure that the third party sellers with whom it works are in compliance with U.S.

[00:22:05] Speaker 00:
regulations.

[00:22:06] Speaker 00:
There's a different question about whether Amazon should be legally expected and legally required to do so, but definitely Amazon could do.

[00:22:14] Speaker 00:
Well, there's certainly nothing in the record on that, your honor, but that highlights a bit of the arbitrariness of this whole thing.

[00:22:20] Speaker 00:
But you don't dispute the proposition.

[00:22:21] Speaker 00:
I mean, it may not be in the record, but it just seems self-evident that Amazon obviously could ask questions.

[00:22:26] Speaker 00:
Do you have the certificates?

[00:22:27] Speaker 00:
Do you send us a copy?

[00:22:29] Speaker 00:
And that's possible.

[00:22:31] Speaker 00:
It's not to say that your client needed to do it, but it's possible.

[00:22:33] Speaker 05:
I mean, I suppose I could have all those situations where, yes, somebody could ask a question.

[00:22:38] Speaker 05:
But that gets into, I guess, highlighting the arbitrariness of doing this with an argument and an adjudication where we're creating a retrospective duty based on things that have already happened.

[00:22:50] Speaker 05:
I hear what you're saying.

[00:22:51] Speaker 05:
I think the proper way to resolve that is to say, if something needs to be done, something more needs to be done, what concrete needs to be done, who is to do it, apply broadly, and do that with congressional authorization by Congress changing the law, or

[00:23:06] Speaker 05:
expanding the agency or to make to engage in a formal rulemaking to set that right.

[00:23:10] Speaker 00:
So that that would make it legally binding in a way that you think it's not the case now, even if everybody can sort of hypothesize that Amazon could do it for its own volition if it wanted to.

[00:23:19] Speaker 00:
And that's just one question conceptually.

[00:23:23] Speaker 00:
We've talked this morning a fair amount and you've talked this morning a fair amount about strict liability, but it seems to me one way to think about this case is

[00:23:31] Speaker 00:
strict liability comes in and determining whether there needs to be knowledge of the violation.

[00:23:37] Speaker 00:
Even if there's no strict liability, there still has to be aiding and abetting of the importation.

[00:23:44] Speaker 05:
There has to be aiding and abetting of a bull.

[00:23:47] Speaker 05:
So the fact that Congress omitted a knowingly or willfully or recklessly or whatnot requirement

[00:23:55] Speaker 05:
in the penalty statute, which is entirely separate provision of both the HPA and the PPA, does not necessarily mean that all violations are strict liability.

[00:24:04] Speaker 05:
That's the flaw in the logic of it.

[00:24:06] Speaker 00:
But I guess what I'm saying is something different, and it's not meant to be an unfriendly question.

[00:24:13] Speaker 00:
It is that even if the statute does allow strict liability, there's still an argument, I thought, that

[00:24:22] Speaker 00:
That doesn't matter at the end of the day for these purposes, because there still has to be aiding and abetting of the importation.

[00:24:28] Speaker 00:
And then if there's aiding and abetting the importation, it may be, suppose that there's a shipper who carries out the importation, who just carries.

[00:24:37] Speaker 00:
And then the shipper doesn't have any idea about the lack of a certification.

[00:24:41] Speaker 00:
Well, then we can have a conversation about whether the shipper is still liable, because strict liability means as a carrier, you're strictly liable.

[00:24:49] Speaker 00:
or carrying imported goods that don't have the requisite certification.

[00:24:53] Speaker 00:
But there would still be an antecedent question, what is the shipper carrying?

[00:24:57] Speaker 00:
And if it's not a shipper, whatever entity is involved, is that an entity that's aiding and abetting a carrying or an importation or movement?

[00:25:04] Speaker 00:
It seems to me to be an analytically antecedent requirement.

[00:25:09] Speaker 05:
Correct.

[00:25:10] Speaker 05:
To get to what I think the heart of the question is,

[00:25:12] Speaker 05:
Even if you said there is strict liability for aiding and abetting, do we lose?

[00:25:16] Speaker 05:
The answer is no.

[00:25:17] Speaker 05:
We win because there still has to be aiding and abetting, the actual carrying, and so forth.

[00:25:23] Speaker 05:
And there's absolutely nothing in the record to indicate any Amazon assistance, substantial and substantial any, on those specific accounts that have to be aided or abetting.

[00:25:34] Speaker 03:
Let me make sure my colleagues don't have...

[00:25:37] Speaker 03:
I have some kind of like back questions that I could ask the government to listen to as well and you tell me if I'm right and then the government disagrees with you it can tell me twice.

[00:25:52] Speaker 03:
In this situation it was a Chinese company that shipped the product to an American.

[00:25:58] Speaker 03:
I write so far.

[00:26:00] Speaker 03:
LA and San Francisco and then that product had to clear customs.

[00:26:05] Speaker 03:
and then a carrier, maybe UPS, maybe FedEx, maybe the post office, took that product from the American port to Amazon's warehouse?

[00:26:15] Speaker 05:
Well, most of the products actually stopped at the port, but yes.

[00:26:18] Speaker 05:
And there were a couple that did go beyond and were found later at the General E warehouse in New Jersey.

[00:26:25] Speaker 05:
If they hadn't been intercepted?

[00:26:26] Speaker 05:
If they hadn't been intercepted.

[00:26:27] Speaker 05:
But there's actually nothing in the record indicating where those that were not intercepted actually came from.

[00:26:35] Speaker 05:
So the products where we know where they came from, and we know they're across the border, they were intercepted at San Francisco and L.A.

[00:26:42] Speaker 03:
Okay, and if they hadn't been intercepted, they would have been taken by, let's say, UPS to an Amazon warehouse.

[00:26:49] Speaker 03:
Correct.

[00:26:49] Speaker 03:
A lot of them, for example, were addressed to the Golden State FC.

[00:26:52] Speaker 03:
And then after they get to the warehouse, Amazon ships the product from the warehouse to the buyer.

[00:26:59] Speaker 05:
So yes, they're placed in the buyer's inventory.

[00:27:03] Speaker 05:
I'll elaborate for a long time on that, but I'll try to keep it concise, Your Honor.

[00:27:06] Speaker 05:
Placing them in those sellers' inventory when a buyer purchases, let's say you purchase this particular product, Sony, if you have to see, will pick it, either ships it in a container or puts it in another box.

[00:27:16] Speaker 05:
And depending on where you live, if you live in a major metro area, Amazon Logistics may handle that delivery or it may be shipped via mail or UPS.

[00:27:27] Speaker 03:
Uh and then this is uh my last question is somewhat separate topic kind of big picture.

[00:27:33] Speaker 03:
It's really dangerous if you know diseases get into the country.

[00:27:39] Speaker 03:
This is what Judge Rogers was talking about.

[00:27:41] Speaker 03:
It's also really lucrative for Amazon to be able to you know do what it's doing.

[00:27:45] Speaker 03:
Uh so you know what do you say to the argument that Amazon wants all the money that comes from this very lucrative business opportunity?

[00:27:56] Speaker 03:
And it doesn't want to be responsible for any of the risks that that creates for the country.

[00:28:03] Speaker 05:
Well, I don't know that's necessarily fair card position, so I think there's a lot of debates on whether to what degree that business is actually profitable.

[00:28:11] Speaker 05:
Amazon does actually undertake a lot of effort to make sure that third party sellers are selling safe.

[00:28:20] Speaker 05:
Amazon invests a lot of money in

[00:28:23] Speaker 05:
in identifying product restrictions and forcing product restrictions.

[00:28:27] Speaker 05:
As an example, if you try to list a piece of prohibited memorabilia, like a gun, for example, on the website, Amazon systems will find that and take that down pretty much instantly before it's even exposed to the marketplace.

[00:28:40] Speaker 05:
So Amazon actually makes a lot of efforts to make sure that people get safe and compliant products.

[00:28:48] Speaker 05:
Amazon does not necessarily have the omissions where it can just discern, OK, this product, which is coming to us from Shenzhen, well, where is this country of origin?

[00:28:59] Speaker 05:
Because that's where it matters.

[00:29:00] Speaker 05:
Is this the country of origin?

[00:29:02] Speaker 05:
A lot of these things.

[00:29:04] Speaker 05:
And is there a certificate?

[00:29:05] Speaker 05:
Because the certificate does not have to come all the way to the diploma center.

[00:29:07] Speaker 05:
The certificate just has to be presented to court.

[00:29:09] Speaker 05:
So I mean, we can hypothesize all kinds of things about what more could be done.

[00:29:14] Speaker 05:
But it's really problematic, especially in adjudication, talking about a single entity, creating retrospective duties based on the idea that something more, some amorphous more could have been done.

[00:29:31] Speaker 00:
Thank you, Councilor.

[00:29:31] Speaker 00:
We'll give you some time for rebuttal.

[00:29:32] Speaker 00:
Thank you.

[00:29:36] Speaker 00:
Mr. Hinchelwood.

[00:29:39] Speaker 04:
Good morning, your honor.

[00:29:40] Speaker 04:
May it please the court, Brad Henshelwood for the Department of Agriculture.

[00:29:44] Speaker 04:
I think it's useful to start by just focusing a little bit about on what exactly the ALJ here held and then how the case was litigated.

[00:29:53] Speaker 04:
I mean, the theory that the ALJ held Amazon liable on, if you look at page 414 to 15 in the JA, is a theory that Amazon's conduct here induced the importation of these products.

[00:30:05] Speaker 04:
Now, Amazon and its appeal to the judicial officer and then its subsequent briefs in this court has launched really a broadside attack on the concept of secondary liability under these statutes.

[00:30:20] Speaker 04:
And I'm happy to get into that.

[00:30:21] Speaker 04:
But I think it's useful to focus on the fact that at least it's an initial matter.

[00:30:25] Speaker 04:
What the ALJ here held is that Amazon's conduct in saying to these shippers,

[00:30:30] Speaker 04:
hey, if you import your products into the United States to us, we will keep them in our inventory.

[00:30:37] Speaker 04:
We will pick them, pack them, ship them, handle returns, provide a certain level of customer service.

[00:30:43] Speaker 04:
If you do that, and all you have to do is import your products to us here in the United States.

[00:30:48] Speaker 04:
And that's sort of the core of the conduct here.

[00:30:51] Speaker 04:
And I think it's worth noting

[00:30:54] Speaker 04:
I think an implication of Amazon's position and my colleagues presentation just now is that there's any number of every other entity involved in that importation.

[00:31:04] Speaker 04:
The shipper in Asia.

[00:31:06] Speaker 04:
the carrier who brings that product from Asia to the United States and across the border, the party that makes entry at the border.

[00:31:13] Speaker 04:
Amazon's view, I take it, is that all of those entities are subject to liability without respect to knowledge.

[00:31:20] Speaker 04:
But somehow Amazon, the entity that actually is the reason all of this is happening, and it sort of induced this importation in the first place, is the only entity that escapes liability under this scheme.

[00:31:31] Speaker 03:
Mr. Hinchelwood.

[00:31:34] Speaker 03:
I'm going to let me let me tell you what I did this morning.

[00:31:37] Speaker 03:
Uh, I went on eBay and I thought maybe I'll buy some Chinese duck top and I found some for $21.29 that is located in China.

[00:31:49] Speaker 03:
They said free economy shipping from greater China to worldwide.

[00:31:53] Speaker 03:
Now I didn't buy it, but imagine I did imagine it had been shipped to me without the right certification.

[00:32:02] Speaker 03:
I open it.

[00:32:03] Speaker 03:
I enjoy.

[00:32:04] Speaker 03:
Chinese duck top.

[00:32:06] Speaker 03:
Am I liable for civil aiding and abetting?

[00:32:10] Speaker 04:
I'm not sure exactly how the agency would address that, but it's certainly possible, Your Honor.

[00:32:16] Speaker 04:
I mean, I think the statutes themselves contemplate the possibility that individual violators will be subject to a violation of the statutes.

[00:32:25] Speaker 04:
And I think it goes to the importance

[00:32:29] Speaker 03:
What if I open it, I see that it lacks certification.

[00:32:36] Speaker 03:
Maybe there's even a note in it that says this lacks, this never had the right certification for importation.

[00:32:44] Speaker 03:
And I report that to the government.

[00:32:46] Speaker 03:
I don't eat the duck tongue.

[00:32:48] Speaker 03:
I call the Department of Agriculture.

[00:32:50] Speaker 03:
Am I still liable for civil aiding and abetting?

[00:32:53] Speaker 04:
We are in so far as the act that would be prohibited, assuming that this product requires a certification is the importation.

[00:33:00] Speaker 04:
I don't think that would change the liability, but I think it's worth emphasizing.

[00:33:03] Speaker 04:
The department is not going to spend its enforcement resources on a situation like that, right?

[00:33:08] Speaker 04:
I mean, I think.

[00:33:11] Speaker 03:
So all I have to do is trust my friendly neighborhood ag official to not bring an enforcement action against me.

[00:33:18] Speaker 03:
Or maybe if they do bring an enforcement action, not to make the penalty as high as $500,000.

[00:33:24] Speaker 04:
Well, your honor, in the case of the consumer, you've just described, the statute actually caps a penalty at no more than a thousand dollars.

[00:33:31] Speaker 04:
So, you know, Congress has in fact contemplated, you know, that there might be individuals who are not culpable sort of caught up in these situations and it has calibrated the penalties accordingly.

[00:33:42] Speaker 00:
But that, you have to admit that that's a pretty breathtaking composition that end consumers and consumers.

[00:33:52] Speaker 00:
are within the crosshairs of a statute that can impose a thousand dollars of liability on them for something they know absolutely nothing about.

[00:33:59] Speaker 00:
So the government's position is that Congress intended the statute, Congress intended in the statute to cover end consumers of products from overseas.

[00:34:08] Speaker 04:
Think about the situation of an individual who carries a product across the border with it in their luggage, not knowing that it's there.

[00:34:16] Speaker 04:
I think everyone, including Amazon, recognizes that person can be subject to a civil penalty, even though they have no culpability.

[00:34:24] Speaker 00:
There's some things that statutes might necessarily have to cover, and ultimately we have to rely on enforcement discretion.

[00:34:31] Speaker 00:
I get that, and fortunately,

[00:34:32] Speaker 00:
You know, that reliance can be well placed in a lot of instances, but the notion that the statute actually intends to cover totally innocent end users who all and end receivers who all they're doing is ordering a project from overseas having no this.

[00:34:48] Speaker 00:
These are people who have no ability to do anything like Amazon.

[00:34:51] Speaker 04:
But Your Honor, I think if you scale it up and you say, you know, I'm a small business and I order, you know, a thousand packages of duck tongue.

[00:35:01] Speaker 04:
And it turns out those things are not.

[00:35:04] Speaker 04:
I don't think the scale is what Congress was focused on here because the scale doesn't matter for purposes of how dangerous the products are.

[00:35:12] Speaker 00:
I guess the question is, which way does that cut?

[00:35:14] Speaker 00:
Because it seems to me that if the statute doesn't cover end users,

[00:35:20] Speaker 00:
then I'm not sure how it covers even large-scale purchasers unless they're actually actively participating in importing, carrying, moving.

[00:35:29] Speaker 00:
Otherwise, all the concepts that are pretty well-heeled about innocent business behavior not coming within the compass of responsibility and liability come to the fore because it's just true.

[00:35:40] Speaker 00:
I don't think there's any question that large-scale purchasers and especially somebody on the scale of Amazon could do a ton.

[00:35:48] Speaker 00:
They absolutely could do a ton.

[00:35:50] Speaker 00:
to help prevent noxious and dangerous products from coming into the U.S.

[00:35:54] Speaker 00:
There's no doubt they could.

[00:35:55] Speaker 00:
The question is whether Congress intended them to.

[00:35:57] Speaker 00:
And if the only way that Congress intended them to is through a mechanism that also would ensnare innocent third party and consumers, I have to ask whether the statute actually is best read in that way.

[00:36:11] Speaker 04:
your honor, I'm not sure that you're really a third party in that circumstance, but in any event, you know, it's certainly not the case that the court would necessarily have to.

[00:36:19] Speaker 00:
Yeah, you're right.

[00:36:20] Speaker 00:
I misspoke.

[00:36:20] Speaker 00:
But end consumers, not third party, end consumers.

[00:36:24] Speaker 00:
If the way the statute brings Amazon in this case within its fold means that end consumers are also brought within its fold, I think you have to ask some pretty serious questions about whether that's the best reading of the statute.

[00:36:39] Speaker 04:
Well, your honor, I think it's, it's useful again to go back to, you know, the specific factual sort of context here and what the agency actually held with respect to Amazon's conduct.

[00:36:48] Speaker 04:
So again, you know, I mean, Amazon is doing something far more than just placing an order for a product, right?

[00:36:54] Speaker 04:
I mean, the, what the ALJ here concluded was that Amazon had through its, you know, particular conduct with respect to these shippers, you know, induced to the importation.

[00:37:05] Speaker 04:
And then, you know, Amazon has just tried to sort of throw up the idea that there's just a knowledge requirement across the board for all four, you know, aid about cause or induce.

[00:37:15] Speaker 00:
Then where in the statute, I think I understand the argument that Amazon might be able to induce in a way that one random consumer wouldn't because Amazon can say, if you work with me, I'm going to open the seas up and you're going to be way more profitable because I'm going to introduce you to 100 million consumers that you otherwise wouldn't have access to as opposed to one.

[00:37:35] Speaker 00:
um, person who orders duck tongue from Louisville, Kentucky.

[00:37:38] Speaker 00:
But I, so I can understand why there's a scale difference, but where in this, what is it in the statute that actually has draws meaningful distinction between those two circumstances?

[00:37:51] Speaker 04:
Well, your honor, go ahead.

[00:37:54] Speaker 04:
Well, I mean, I think what the department was actually sort of put to deciding here, what the ALJ actually decided, was whether Amazon had induced the importation or not.

[00:38:04] Speaker 04:
And so to the extent, Your Honor, I suggested there might be a distinction in the ability of an individual consumer to induce as opposed to a corporation like Amazon to induce, then that would potentially be a basis on which to draw that line.

[00:38:19] Speaker 03:
How could you induce any more than buying the product?

[00:38:21] Speaker 03:
It seems like the purchaser is the ultimate inducer of the importation.

[00:38:25] Speaker 03:
They're the ones paying the seller to ship it.

[00:38:29] Speaker 04:
Well, that's why I gave you the answer I did at the outset of this conversation.

[00:38:33] Speaker 04:
But I think that again goes back to the fact that the fact that a single product can create the kinds of harms that Congress is concerned about.

[00:38:45] Speaker 04:
And that's why, look, again, the department is not spending its time and resources going around and finding every person who orders a single item off of eBay or what have you.

[00:38:54] Speaker 04:
But at the same time, Congress recognizes that

[00:38:58] Speaker 04:
a single product can cause the kind of destruction that it's concerned about in these statutes.

[00:39:04] Speaker 03:
Can you point to any precedent where a court's created a duty to discover a third party's wrongdoing under the guise of secondary liability?

[00:39:19] Speaker 03:
And I know you talk about Iran Air and Federal Express, but there it was it was Iran Air and FedEx who were actually doing the carrying across across the border, I think.

[00:39:32] Speaker 03:
So what's your best precedent where a court has created a duty to discover third party wrongdoing under the guise of secondary?

[00:39:41] Speaker 04:
Well, I mean,

[00:39:42] Speaker 04:
I think i mean a iran air and federal express obviously are secondary liability cases and whatever you think about the specific activities they're not third i think they're not third i think they're not third party liability right because they they were directly carrying the product across the border sure but but again your honor i mean i want to resist the idea that amazon is somehow being held liable for the actions of third parties i mean in the sense that it's being held liable for what it did it's being held liable for

[00:40:10] Speaker 04:
its inducement of these importations, which were in fact unlawful.

[00:40:15] Speaker 00:
So, you know, I don't want to be true of an end consumer.

[00:40:18] Speaker 00:
You're just on the same theory as an end consumer.

[00:40:21] Speaker 04:
Again, to the extent that there is, you know, a perceived unfairness about

[00:40:27] Speaker 04:
imposing penalties without culpability or without liability.

[00:40:30] Speaker 04:
I mean, that's true of any scheme in which there is not a knowledge requirement, but Congress.

[00:40:35] Speaker 00:
I don't even think it's perceived.

[00:40:37] Speaker 00:
It's not perceived unfairness in the abstract.

[00:40:39] Speaker 00:
It's just what we think Congress intended with the, with the statute.

[00:40:43] Speaker 00:
And it's just hard to read this statute or any statute for that matter as reflective of a congressional intention to ensnare and consumers.

[00:40:53] Speaker 00:
Just really, that's somebody who induces the carrying, entering, importing, shipping, or transportation is a consumer who buys it.

[00:41:03] Speaker 00:
And it seems to me there's got to be a difference between an end consumer and Amazon, or else it's really hard to read the statute the way the government does.

[00:41:12] Speaker 04:
Well, Your Honor, again,

[00:41:13] Speaker 04:
I haven't seen a case where the agency has enforced the statute in that fashion.

[00:41:17] Speaker 04:
So I can't say as a matter of precise fact what the agency would do, how the judicial officer would rule on a instance like that.

[00:41:26] Speaker 04:
I'm certainly not gonna sit here and rule it out.

[00:41:29] Speaker 04:
But at the same time, I think if you look at the text and structure of the statutes and understand the reason these statutes are written the way that they are, which is to protect American agriculture and public health,

[00:41:39] Speaker 04:
you know, and that you have and recognize that there are, frankly, I think, very analogous situations where an individual, you know, might purchase a product overseas and carry it back in their luggage, not knowing that it's it lacks a certificate, a certificate.

[00:41:55] Speaker 03:
I take your I take your point that you you think here, you know, Amazon is not being held responsible for a third party's wrongdoing that Amazon actually did the wrongdoing.

[00:42:04] Speaker 03:
So maybe let me rephrase my question about the precedents a little bit.

[00:42:07] Speaker 03:
Can can you give me a precedent

[00:42:09] Speaker 03:
where, under the guise of secondary liability, the court said the defendant's wrongdoing is that it failed to stop someone else's wrongdoing.

[00:42:29] Speaker 04:
I mean, I know there are cases, I can't give you a case off the top of my head.

[00:42:33] Speaker 04:
I know there are cases, for example, discussed in Halberstam that talk about the difficult question of whether omissions can count as assistance.

[00:42:41] Speaker 04:
And I'm not, I couldn't tell you exactly how all of these cases have come out, but I know this issue has arisen.

[00:42:45] Speaker 03:
But, you know, I think again- The law often draws a distinction between action and inaction, whether it's tort law or whether it's the commerce clause.

[00:42:55] Speaker 03:
And you could probably come up with 10 other

[00:42:57] Speaker 03:
uh, examples or 110 other examples.

[00:42:59] Speaker 03:
And you know, this goes a little bit to the chief judge's question.

[00:43:03] Speaker 03:
You know, if if you're going to say what Amazon did wrong was it failed to act, uh, you're you're you're shaking your head.

[00:43:14] Speaker 03:
I think that would that would require more statutory support than, you know, maybe a typical statutory interpretation.

[00:43:24] Speaker 03:
that you're shaking your head.

[00:43:25] Speaker 03:
You go ahead.

[00:43:26] Speaker 04:
Well, I'm shaking my head only because I don't think it's accurate to characterize what the department held here as that Amazon's responsible for what it didn't do.

[00:43:34] Speaker 04:
I mean, Amazon's responsible for what it did, which is that it induced the importation of these products.

[00:43:41] Speaker 03:
Amazon was doing its normal business practice here.

[00:43:44] Speaker 03:
And my understanding is that that normal business practice is not at all illegal in many situations.

[00:43:56] Speaker 04:
I think that's fair to say.

[00:43:58] Speaker 03:
It turns out that these particular products... Its wrongdoing here was its failure to deviate from its ordinary business practice.

[00:44:08] Speaker 04:
No, the wrongdoing is that these products were unlawfully imported.

[00:44:12] Speaker 04:
And Amazon induced the importation of those products that were unlawfully important.

[00:44:16] Speaker 04:
That's the wrongdoing.

[00:44:17] Speaker 04:
Now, if the question is, what more could Amazon have done if it wants to, you know, for example, continue to engage in these practices in the future and avoid liability, there are certainly steps Amazon could take.

[00:44:27] Speaker 04:
The ALJ identified some, for example,

[00:44:29] Speaker 04:
And I think my colleague recognized that Amazon could in fact do other things if it wants to continue to engage in importing these products that Congress has identified as especially concerning, especially dangerous because of the risk that they pose.

[00:44:44] Speaker 00:
In terms of the role of Amazon in the wrongdoing,

[00:44:47] Speaker 00:
I was going to ask about whether the government's theory encompasses selling on Amazon.

[00:44:52] Speaker 00:
I mean, the fact that it encompasses end consumers I think answers that question.

[00:44:55] Speaker 00:
But it seems to me there's no distinction between fulfillment by Amazon and selling on Amazon, right?

[00:45:01] Speaker 00:
Because Amazon is clearly inducing importation when it allows third-party sellers to sell via Amazon because it opens up

[00:45:09] Speaker 00:
marketplace that the third party seller otherwise would have more difficulty accessing.

[00:45:14] Speaker 04:
Well, what I can tell you on that is the judicial officer here and the ALJ both considered arguments from Amazon that this would sweep in something like Craigslist, right?

[00:45:24] Speaker 04:
So sort of a website where people post, you know, essentially classified ads.

[00:45:28] Speaker 04:
And it said, look, you know, Amazon's conduct here is meaningfully different.

[00:45:32] Speaker 04:
The fulfillment by Amazon program is meaningfully different.

[00:45:34] Speaker 04:
from what a service like Craigslist provides.

[00:45:38] Speaker 00:
But all of that would apply to selling on Amazon too.

[00:45:42] Speaker 00:
Selling on Amazon is volitional business conduct by Amazon that induces wrongdoing in the same way that fulfillment by Amazon does.

[00:45:52] Speaker 00:
Although I know you get the warehouse with fulfillment by Amazon and you get assistance with the actual purchasing selling transaction, but selling on Amazon also is a huge boon to overseas sellers.

[00:46:01] Speaker 04:
Yeah, but I'm not sure that Amazon or sorry that the department would say that that induces, you know, importation in the same way, certainly given that there's not the same level of involvement from Amazon here in the purely selling my Amazon, particularly where I mean if you look at page 4960 of the JA, the judicial officer distinguished something like Craigslist under the sort of inducement theory of the statute.

[00:46:24] Speaker 04:
So, you know, I'm not

[00:46:26] Speaker 04:
necessarily, I'm not sure that the selling on Amazon program alone would, you know, would lead to the same kind of library.

[00:46:35] Speaker 00:
I don't know what the distinction would be because selling on Amazon.

[00:46:39] Speaker 00:
Absolutely is a big boom to third party and it induces in the same way, because it induces by encouraging by

[00:46:49] Speaker 04:
Well, I mean, I think, your honor, what's different here, what makes this case at a minimum, a much easier one is that Amazon is actually inducing the importation, right?

[00:46:59] Speaker 04:
I mean, the whole point here is get your product to Amazon's warehouse so that you can take advantage of all the services that Amazon's then going to provide, you know, once it's in the warehouse.

[00:47:09] Speaker 04:
And so the entire, you know, sort of

[00:47:11] Speaker 04:
relationship here starts from the premise of, you know, we want you foreign company to ship your products import your products to us in the United States.

[00:47:20] Speaker 04:
And we will give you, you know, sort of, we will, we will then take it from there.

[00:47:24] Speaker 04:
You know, and that's really the core of what the ALJ and the judicial officer here, you know, found to be

[00:47:29] Speaker 00:
Amazon says if you sell on Amazon, you're going to be able to sell a ton more product in the US because US consumers have done all the empirical assessments and it's got to be true.

[00:47:42] Speaker 00:
people who have the ability to purchase things on Amazon are much more likely to buy it than if they don't have the ability to purchase it on Amazon.

[00:47:50] Speaker 00:
And so the argument would be you have access to a customer base in the U.S.

[00:47:54] Speaker 00:
that you would absolutely not have access to otherwise.

[00:47:57] Speaker 00:
You should use sell on Amazon.

[00:47:58] Speaker 00:
And that definitely encourages importations because it causes the third party seller to sell it to U.S.

[00:48:06] Speaker 00:
consumers in a way that they otherwise wouldn't be able to do.

[00:48:10] Speaker 04:
I mean, Your Honor,

[00:48:11] Speaker 04:
you're using, I mean, A, you're using the phrase encourages, and I'm not sure exactly what theory of the statute that's going to fall under, if at all.

[00:48:19] Speaker 00:
I'm just trying to use a synonym for induce, but I just use induce.

[00:48:24] Speaker 04:
Yeah.

[00:48:25] Speaker 04:
Again, you know, something like Craigslist allows the same sort of thing, right?

[00:48:29] Speaker 04:
Allows somebody to post their products for sale in the United States and then, you know, would obviously handle their own fulfillment and shipment from overseas to the United States.

[00:48:38] Speaker 04:
You know, that

[00:48:39] Speaker 04:
you know, the ALJ here and the judicial officer didn't seem to think that that conduct would necessarily fall within the scope of the statute, within the scope of inducement.

[00:48:48] Speaker 04:
You know, I think this goes to, you know, I sort of resist the notion that there's sort of, you know, no limits on the ability of the agency to impose or that the agency itself has any interest in imposing liability on, you know, sort of every entity on the face of the earth.

[00:49:04] Speaker 01:
I think the relevant point-

[00:49:06] Speaker 01:
where I just want to hear you focus for a moment.

[00:49:11] Speaker 01:
In other words, if the court were to write an opinion that is focused solely on the facts of this case, which are undisputed, although I heard counsel this morning trying to question some things, but I think it's been accepted in the record

[00:49:36] Speaker 01:
that Amazon's market is and the services it provides are sufficiently distinct from anything an individual consumer could offer.

[00:49:53] Speaker 01:
That the individual consumer case is simply not before the court because there are many statues where

[00:50:05] Speaker 01:
I'll put it in criminal terms, a prosecutor has broad authority and does not fully exercise it.

[00:50:16] Speaker 01:
So here in a civil context, you have a comparable situation where you don't want to give anything up on behalf of the department, but

[00:50:32] Speaker 01:
we can acknowledge that today the department has not brought to us the case of individual liability such as posed by Judge Walker's hypothetical and that there is no need for the court to issue an advisory opinion on that circumstance

[00:51:02] Speaker 01:
that the statutes books are full of statutes that can be misapplied, but that's not at least the way the department has presented this case to us, rather that this case in the department's view clearly falls within

[00:51:33] Speaker 01:
authority of the department based on the ALJ's approach about inducement.

[00:51:43] Speaker 01:
And that a lot of the difficult questions that could arise in another context simply aren't before us.

[00:51:52] Speaker 01:
And I'm troubled

[00:51:55] Speaker 01:
because I don't think you can speak and I think you've made this clear on behalf of precisely how the department would face some other situations.

[00:52:07] Speaker 01:
But rather here, I mean, Amazon is the elephant in the room in terms of inducement here.

[00:52:17] Speaker 01:
And that's what the court is confronted with.

[00:52:20] Speaker 01:
Now, the court may still decide to rule against the department, but it seems to me that it's a legitimate argument that hypotheticals can be posed.

[00:52:35] Speaker 01:
And we're seeing this in the gun area.

[00:52:37] Speaker 01:
To what extent are parents held criminally responsible for the actions of their children?

[00:52:45] Speaker 01:
particularly in the gun area.

[00:52:48] Speaker 01:
So these are not unsensitive areas of law.

[00:52:53] Speaker 01:
And certainly there is an understanding of why Congress would proceed as it has here, where it's talking about the type of devastating plagues that occur, where you have the elephant in the room.

[00:53:14] Speaker 01:
And that's this case before us and we can either take it or leave it.

[00:53:18] Speaker 01:
But I don't think coming up with hypotheticals.

[00:53:23] Speaker 01:
And I know one of our colleagues famously said, well, we have to look at the implications of our decisions.

[00:53:28] Speaker 01:
And there's no question about that.

[00:53:31] Speaker 01:
But the court has recently been advised by the chief legal officer for the executive branch how to handle these situations.

[00:53:41] Speaker 01:
And it seems to me that that is appropriate in this type of case as well.

[00:53:47] Speaker 01:
So, you know, by conceding some things where you're not in a position to respond, it doesn't seem to me you've given away the ball game, rather those are issues for another day.

[00:54:03] Speaker 01:
And I'm concerned because I think that Amazon's attorney has presented a very forceful argument

[00:54:13] Speaker 01:
if we were dealing in my view, not with the type of volume services and potential marketplace and the very dangerous products that potentially can be imported

[00:54:46] Speaker 01:
and customs may have responsibilities, the railroads and airlines may have responsibilities, but can anyone who is involved in some way in inducement escape any responsibility whatsoever?

[00:55:04] Speaker 01:
So what's wrong with our approaching the case that way?

[00:55:10] Speaker 04:
Your honor, I certainly think this court could decide, you know, just on the basis of, you know, Amazon's conduct here and leave for another day, sort of subsequent questions if such an enforcement action is broad and comes before this court.

[00:55:23] Speaker 04:
I certainly think that would be an appropriate way to proceed.

[00:55:26] Speaker 04:
You know, I think, frankly, you know, the conduct here is such that, you know, if Amazon

[00:55:32] Speaker 04:
can't be held liable under these statutes, it's very hard to see how anybody could possibly be held liable, you know, under the sort of, A to B, cause or induce language of these statutes, given the conduct here.

[00:55:44] Speaker 01:
Unless the language of the statutes, the text of the statute is simply too vague

[00:55:53] Speaker 01:
and all-encompassing because Amazon is saying we had no prior notice of all these obligations that are being suggested by the department.

[00:56:04] Speaker 01:
We were just doing what we normally do.

[00:56:07] Speaker 01:
We made an offer and if somebody wants to accept it, that's their decision.

[00:56:13] Speaker 01:
And we may make our offer attractive, but that doesn't implicate us in any

[00:56:24] Speaker 01:
unlawful activity, that's what I hear them saying.

[00:56:30] Speaker 01:
And that's the department's problem or it's Congress's problem to figure out what happens in that situation and it hasn't, and it simply dropped the ball.

[00:56:45] Speaker 04:
Your Honor, I mean, I take that to be Amazon's view.

[00:56:48] Speaker 04:
I mean, we haven't actually discussed very much today, the actual text and structure of these statutes, but you know, I think what the agency here held and

[00:56:58] Speaker 04:
you know, was exactly what this court recognized in both Federal Express and Iran Air, which is where you have a, you know, statute that provides that criminal penalties can be imposed knowingly, but that, you know, civil penalties require, have no mens rea requirement attached.

[00:57:16] Speaker 04:
You know, that that is exactly the kind of statute that lends itself to imposition of civil penalties without knowledge.

[00:57:22] Speaker 00:
I mean, Amazon's essentially- I might actually agree with you on that.

[00:57:26] Speaker 00:
I might actually agree with you on that.

[00:57:28] Speaker 00:
At least I'm open to agreeing with you on that.

[00:57:32] Speaker 00:
And I do want to talk about the structure of the statute, because I think as I was indicating my colloquy with counsel on the other side, I think there's a way to read a statute that's structurally sound that cordons that one off.

[00:57:45] Speaker 00:
But before we get to that, I do want to get to that.

[00:57:47] Speaker 00:
I want to follow up on Judge Rogers' question in the following way.

[00:57:52] Speaker 00:
The implications for this case

[00:57:55] Speaker 00:
cover fulfillment by Amazon and all the activities of fulfillment by Amazon undertakes.

[00:58:02] Speaker 00:
And I asked the question about selling on Amazon.

[00:58:04] Speaker 00:
And I just want to draw your attention to J 467.

[00:58:10] Speaker 00:
And this is the judicial officer's decision.

[00:58:12] Speaker 00:
And, um, sort of maybe halfway down the first partial paragraph at the top of this page,

[00:58:18] Speaker 00:
Here, the foreign third party sellers gained access to millions of potential customers in the United States who use the Amazon.com website and were afforded the opportunity for business growth and exposure.

[00:58:28] Speaker 00:
It's inconceivable that the many benefits provided foreign third party sellers by Amazon through FBA and SOA would not influence the decision to import the restricted products into the United States.

[00:58:39] Speaker 00:
And so as I read the judicial officer's decision by its own terms,

[00:58:43] Speaker 00:
The whole logic about inducement, because that's what we're talking about here, applies equally to SOA as to FBA.

[00:58:49] Speaker 00:
So it applies equally to selling on Amazon as fulfillment by Amazon.

[00:58:53] Speaker 00:
Is that not the way to read that?

[00:58:55] Speaker 04:
I don't think so.

[00:58:57] Speaker 04:
I think that specific paragraph you're referring to there is in the course of the judicial officer's discussion of Culbertson, rather than in his sort of laying out the whole structure of what's going on.

[00:59:10] Speaker 04:
And I think it's meaningful there

[00:59:12] Speaker 04:
The judicial officer says, look, it's the benefits through the combination of FBA and SLA.

[00:59:17] Speaker 04:
Of course, you can't participate and fulfill it by Amazon if you aren't also selling on Amazon.

[00:59:22] Speaker 04:
So, you know, I don't think you necessarily would read that as compelling any particular conclusion that selling on Amazon has the same problem.

[00:59:33] Speaker 00:
FBA insofar as FBA also incorporates SOA because it's saying FBA and SOA.

[00:59:39] Speaker 00:
I mean, I know we're not reading a statute.

[00:59:40] Speaker 00:
I don't mean to suggest that we're doing, you know, express, you know, you need a stuff on the language of a judicial officer's decision, but I just think I understand what the judicial officer's saying because the judicial officer's logic, and I totally get this, is that Amazon through the services it provides by both FBA and SOA is absolutely inducing

[01:00:00] Speaker 00:
third-party sellers to use its services because it's going to reach millions of customers, millions of potential customers in the United States.

[01:00:07] Speaker 00:
I guess my only point is that because it speaks in terms of both FBA and SOA, it seems to me that the logic, the inducement logic that you're very understandably emphasizing as the reason that

[01:00:19] Speaker 00:
we would find that the judicial officer permissibly concluded FBA is within the statute would also naturally apply to SOA.

[01:00:27] Speaker 00:
And then if that naturally applies to SOA, that's just, then you're getting in consumer land.

[01:00:33] Speaker 04:
Your honor, again, I just think this particular sentence you're referring to just has to be better in its context.

[01:00:37] Speaker 04:
I mean, the judicial officer there is distinguishing Culbertson and the 10th Circuit and Culbertson essentially said that individual had no influence whatsoever over the movement of the infected cattle in that particular case.

[01:00:51] Speaker 04:
And so I think the judicial officer is saying, look,

[01:00:54] Speaker 04:
However you want to slice it, Amazon definitely had an influence over the movement of these products.

[01:00:59] Speaker 04:
This case is very different from Culbertson just on its facts, even setting aside that we don't think Culbertson has any legal relevance here.

[01:01:10] Speaker 04:
suggest that a single sentence that happens to reference selling on Amazon compels any particular conclusion about whether selling on Amazon alone would qualify as inducement, particularly given that the facts the judicial officer lays out earlier in his opinion sort of walks through the whole sort of scene and all those sort of things that go into the fulfillment by Amazon program that sort of actually led to the importation here.

[01:01:37] Speaker 00:
And then can I follow up on the structure of the statute?

[01:01:39] Speaker 00:
So let's suppose that you're right, that because of the absence of knowingly in the civil penalty provision, that means that strict liability is available to the government under the civil penalty provision, and it's not under the criminal penalty provision.

[01:01:56] Speaker 00:
Let's suppose that that's right, and that's the logic of FedEx and your understandably seizing on that in your argument.

[01:02:03] Speaker 00:
It seems to me there's still a route by which the government

[01:02:07] Speaker 00:
doesn't prevail here, and that preserves strict liability for violations.

[01:02:14] Speaker 00:
And that's that aiding and abetting and causing and inducing, modify, importing, carrying, mailing, shipping, and transporting.

[01:02:23] Speaker 00:
And so at least as a logical matter, it could be that certain activity doesn't satisfy that part of the statute.

[01:02:32] Speaker 00:
But if it did satisfy it, then you wouldn't need to know about the violation.

[01:02:35] Speaker 00:
You're ensnared just as a matter of strict liability.

[01:02:38] Speaker 00:
And that would preserve the government's ability to bring actions against entities and individuals who may not know about the ultimate violation.

[01:02:50] Speaker 00:
But they would be entities and individuals that would be deemed to have done enough to constitute aiding and abetting, causing or inducing the carrying, importing, shipping, et cetera.

[01:03:00] Speaker 00:
Does that make sense?

[01:03:03] Speaker 04:
I don't think I disagree with anything you've just said.

[01:03:05] Speaker 04:
I think, in fact, you've just described this case.

[01:03:08] Speaker 04:
I mean, the point is that Amazon induced the importation of these products.

[01:03:12] Speaker 04:
I mean, that's exactly what the agency here held.

[01:03:17] Speaker 04:
I mean, it's not that Amazon induced something that's not carrying, importing, entering ship.

[01:03:23] Speaker 04:
The whole point is that Amazon moved these products because it induced the importation of these products.

[01:03:29] Speaker 00:
So I don't disagree.

[01:03:30] Speaker 00:
Suppose then, I know you resist this presumption, you resist this assumption, but suppose that I disagree with you on that and I think Amazon didn't do enough to cause induce, but I still don't have to say then I think that the statute

[01:03:49] Speaker 00:
forecloses strict liability.

[01:03:51] Speaker 00:
Because I think I could still say the statute actually allows for strict liability for unknowing violations.

[01:03:59] Speaker 00:
It's just that you don't come within the fold of the statute unless you aid, abet, cause, and induce, and you have to first satisfy that layer.

[01:04:06] Speaker 00:
This case, by hypothesis, gets off at that layer.

[01:04:10] Speaker 00:
But for somebody who comes within the fold, like a shipper, for example, you're carrying, inducing, there could be strict liability.

[01:04:16] Speaker 00:
At least we don't have to answer that question.

[01:04:19] Speaker 04:
Well, your honor, I mean, so certainly I think there, they are distinct questions under the statute.

[01:04:25] Speaker 04:
I would just emphasize in the case of the shipper for example, that person is engaged in the primary conduct of carrying.

[01:04:32] Speaker 04:
So you don't need to get into secondary liability principles at all for that type of person.

[01:04:38] Speaker 04:
The only reason secondary liability is relevant in this case, for example, is that Amazon isn't actually doing the actual carrying what it has done or importation or whatever.

[01:04:50] Speaker 04:
It is inducing that conduct on the part of others.

[01:04:55] Speaker 04:
Other people are engaged in the primary conduct that Amazon has induced.

[01:04:58] Speaker 00:
Yeah, and I think your point is well taken, that if we give the words aid, abet, cause and induce some meaning, the Venn diagrams have to work so that there's some broader circle that's encompassed by that, that's not already encompassed by the primary conduct of shipping, carrying, importing.

[01:05:13] Speaker 00:
I take the point, but I still think it's true that even if we deem this conduct to be outside the ken of aiding and abetting, causing and inducing, that doesn't answer the question of whether the statute encompasses strict liability for civil penalties.

[01:05:29] Speaker 00:
it could still encompass their liability for civil penalties.

[01:05:33] Speaker 04:
Right.

[01:05:33] Speaker 04:
I mean, if, yeah, if you said, regardless of whether there's a knowledge requirement or not, this conduct does not, you know, suffice for a to bad cause induced, then, right, you wouldn't necessarily be commenting on the question of whether there is, in fact, a knowledge requirement.

[01:05:50] Speaker 04:
But, you know, again, as I was saying in my colloquy with Judge Rogers earlier, I mean, it's

[01:05:56] Speaker 04:
sort of hard to picture how this sort of conduct where Amazon again these these products are being pre registered with Amazon.

[01:06:03] Speaker 04:
Amazon knows what's coming Amazon wants it to be there and Amazon is encouraging the shippers to send the stuff to them to import it to them in the first place that Amazon can hold it and carry on with all the other activities that it's going to engage in here.

[01:06:15] Speaker 04:
this kind of conduct doesn't qualify.

[01:06:17] Speaker 04:
If you imagine a company where that was their only business, not an Amazon, but just somebody whose entire business was, I am the company in the United States that you ship your plant and animal products to, and then I will do all the things Amazon does through its fulfillment by Amazon service.

[01:06:33] Speaker 04:
I think it'd be very, very difficult to sit here and say, well, somehow that company is the only one in the chain

[01:06:40] Speaker 04:
that escapes liability, right?

[01:06:41] Speaker 04:
That everybody else can be subject to liability, but not the reason these products are here in the first place, right?

[01:06:47] Speaker 04:
Not the company that's actually the reason the stuff is here.

[01:06:51] Speaker 00:
Right.

[01:06:51] Speaker 00:
And I guess to get back to the very beginning, the question would be, well, if that's also true of an end consumer, then where does that leave us in reading the statute?

[01:06:59] Speaker 04:
I understand your I would just emphasize, you know, I think it's useful.

[01:07:04] Speaker 04:
I recognize that result can seem harsh, but I think it's useful to just bear in mind.

[01:07:09] Speaker 04:
I don't see a huge difference between the individual who buys a product right before they get on the plane and carries it over the border versus someone not knowing any of the same things.

[01:07:19] Speaker 04:
Someone who orders the product while they're sitting at their computer in the United States and it comes across the border, it's

[01:07:24] Speaker 04:
you know, to me, those things don't seem particularly different.

[01:07:27] Speaker 04:
Congress has addressed that through, you know, the, the penalties provisions and the agency itself just doesn't have an interest in, you know, making people's lives needlessly difficult.

[01:07:37] Speaker 04:
It's focused on trying to prevent, you know, the spread of diseases that can be spread by a single product.

[01:07:42] Speaker 04:
I mean, that's the reality here.

[01:07:47] Speaker 00:
Let me make sure my colleagues don't have additional questions for you.

[01:07:50] Speaker 00:
Can you,

[01:07:52] Speaker 03:
briefly respond to Amazon's argument that, um, no Chevron deference, uh, should apply here because the agency has asserted that its interpretation is compelled by Congress and we have precedents.

[01:08:07] Speaker 03:
The Supreme Court has precedents that say if the agency says the interpretation is compelled by the statute, then there's no deference.

[01:08:16] Speaker 04:
Your honor, I think Amazon has latched onto a single sentence in the judicial officer's opinion that says, you know, essentially that even if there were a settled common law meaning of these terms that was imported into the statutes, which there is not, even if that were true,

[01:08:33] Speaker 04:
you know, the text and structure of these statutes would displace that meaning.

[01:08:36] Speaker 04:
I think you said would compel rejection of Amazon's argument.

[01:08:40] Speaker 04:
I think if you read the decision as a whole, I mean, the judicial officer is taking into account text structure, history, these statutes, and also the statutory sort of policy and purposes.

[01:08:51] Speaker 04:
And so at that point, you know, I think that's absolutely a situation where ordinarily this court would, you know, if it perceived an ambiguity in the statute,

[01:09:00] Speaker 03:
You know, I take I take your point about what was done before today.

[01:09:05] Speaker 03:
But today, what is the agency's position?

[01:09:08] Speaker 03:
Is the interpretation you're asserting compelled by the statute?

[01:09:14] Speaker 04:
Your honor, I honestly have not asked the agency that specific question.

[01:09:18] Speaker 04:
I mean, I think certainly the reading of the statute the agencies put forward is, you know,

[01:09:24] Speaker 04:
more than plausible one.

[01:09:26] Speaker 04:
I mean, it certainly matches the way this court has interpreted comparable statutes, both in Federal Express and Iran Air, but also in the MINAC context and other statutory contexts that have similar structures.

[01:09:38] Speaker 04:
But I haven't asked the specific question of whether they think it's compelled or not.

[01:09:42] Speaker 04:
Obviously, if there are doubts about that, I suppose you can answer that question.

[01:09:49] Speaker 04:
I think if you read the opinion as a whole, you get a sense that the agency is really taking into account all the relevant considerations in reaching its conclusion here.

[01:09:58] Speaker 03:
Then I have one last question about what your understanding of inducement means.

[01:10:03] Speaker 03:
I know you say here that Amazon induced the movement.

[01:10:09] Speaker 03:
And I think the reason that you think they induced it is that they created so many incentives for it to happen that they made it a lot more likely to happen.

[01:10:19] Speaker 03:
That's sort of right, sort of my ballpark of what your theory is.

[01:10:24] Speaker 04:
I think right.

[01:10:24] Speaker 04:
I mean, an inducement, right, is usually a promise to try to get you something else.

[01:10:30] Speaker 03:
So I did assume that the post office takes the product from the port to the warehouse and then on to the customer.

[01:10:42] Speaker 03:
Did the postal service induce the movement into the country?

[01:10:47] Speaker 04:
Your honor, I think I'm actually glad you asked this because I think it gets to some important distinctions.

[01:10:51] Speaker 04:
So again, it may depend on the specific type of restriction the secretary has imposed.

[01:10:57] Speaker 04:
So some products have restrictions on their domestic movement.

[01:11:01] Speaker 04:
Other products have restrictions on their international movement, their importation.

[01:11:05] Speaker 04:
So there may not be subsequent restrictions imposed on the products after they cross the border.

[01:11:10] Speaker 04:
Once they're in the United States, if the thought is you have prepared it safely, you have given the certificates showing that it's safely prepared, there may not be further restrictions on the domestic movement of the product.

[01:11:22] Speaker 04:
It varies a lot from product to product and from pest or disease to pest or disease.

[01:11:30] Speaker 04:
I'm not aware specifically here of any further domestic movement restrictions on some of these products.

[01:11:37] Speaker 04:
For example, the Plant Protection Act violations involved a product that actually couldn't be imported at all for commercial purposes.

[01:11:43] Speaker 04:
And so there may have been further domestic restrictions on that product's movement.

[01:11:49] Speaker 04:
To make clear, it doesn't follow that every single entity that is involved in the domestic movement would necessarily be committing a separate violation.

[01:11:59] Speaker 00:
I do have one follow-up question on Chevron.

[01:12:00] Speaker 00:
I'm glad we got down there because I meant to ask it earlier.

[01:12:03] Speaker 00:
And this is separate from whether the best way to read the judicial officer's opinion is that the reading that is encompassed by that opinion is compelled by the statute in a sort of Chevron step one sense.

[01:12:19] Speaker 00:
Let's just put that to one side.

[01:12:22] Speaker 00:
If all an agency does is to say, we're looking at the statute and we're applying traditional candidates of construction in the same way that a court would, and we think the better reading is X. That's typically not chevron worthy because

[01:12:37] Speaker 00:
the agency isn't bringing to bear its own expertise and its policymaking and lawmaking expertise on the answer to the question of how is this dash 20 back ambiguity resolved and that's the Peter Pan decision and other decisions in that line and as I read the judicial officer's opinion.

[01:12:56] Speaker 00:
It's an exercise in statutory interpretation, but it doesn't seem to be one in which the agency, and this is, it's odd to think about adjudications this way to some extent, but it doesn't seem to be one in which the agency is saying, we see that there's a statutory ambiguity and our policymaking and lawmaking expertise

[01:13:17] Speaker 00:
causes us to think the better reading is that it encompasses, the statute encompasses activities like those that are in play here vis-a-vis Amazon as opposed to not.

[01:13:28] Speaker 00:
It's really, if I apply Canon X or Canon Y in exactly the same way that a court would, this is what I think Congress intended the statute to reach, not what I think in the exercise of my delegated lawmaking power, I think the statute should reach within the fold of the ambiguity that Congress left

[01:13:49] Speaker 04:
Certainly, Your Honor, there are aspects of the decision that, you know, obviously walk through the text and structure of the statutes and apply and address the arguments Amazon has raised.

[01:14:00] Speaker 04:
Now, I think there are also aspects of decision some of which Amazon spends a great deal of its brief criticizing.

[01:14:05] Speaker 04:
that go through and sort of talk about the policy considerations implicated if Amazon were correct, and it somehow escaped liability despite its conduct here.

[01:14:14] Speaker 04:
That, you know, these are remedial statutes that the agency ought to interpret broadly.

[01:14:19] Speaker 04:
You know, these are things that aspects of the reasoning Amazon criticizes.

[01:14:23] Speaker 04:
Now, look.

[01:14:25] Speaker 00:
Where is the best part for you on the agency exercising its delegated

[01:14:33] Speaker 00:
policy slash lawmaking authority to construe the statute as opposed to doing what courts do, which is try to figure out what the best reading is, what Congress intended.

[01:14:45] Speaker 04:
I mean, the specific discussion I was just referring to is, you know, happens on pages 463 and 464 of the Joint Appendix, where sort of the judicial officer walks through those elements.

[01:14:57] Speaker 00:
I mean, look, you're certainly I thought that's the best place to I thought that's the best place to and the one thing that I noticed about that is

[01:15:04] Speaker 00:
First of all, it's at the very end of a lot of other stuff that just sort of standard what courts do.

[01:15:10] Speaker 00:
And courts often, at the end of their opinion, say the statutory purposes are best served by this reading as opposed to the other.

[01:15:14] Speaker 00:
And to me, that's what this read like.

[01:15:16] Speaker 00:
And part of that is that in the footnote 107, which is appended to the sentence that says, Amazon's interpretation,

[01:15:26] Speaker 00:
works against the respective congressional purpose, that's citing a judicial decision that does what courts do, as opposed to this is us in our policymaking role telling you that we think as an exercise of delegated lawmaking authority, this is the way the statute should work.

[01:15:44] Speaker 04:
Yeah, I think the decision there that's being cited actually defers to the agency's interpretation of its regulation.

[01:15:50] Speaker 04:
So I don't know that it's quite as straightforward as all that.

[01:15:54] Speaker 04:
To the extent the court, you know, thinks there's an ambiguity and the agency has the authority to fill it, you know, with to, you know, address that ambiguity within the scope of it.

[01:16:06] Speaker 04:
You know, obviously the agency could do that.

[01:16:08] Speaker 04:
I mean, I think, you know, you can read the decision here as a whole and get a very clear sense of how the agency views.

[01:16:14] Speaker 04:
these statutes and the authority that it's operating under.

[01:16:17] Speaker 04:
Um, you know, so I don't know that that sort of approach is necessary here, but, you know, I certainly recognize the the principle that this court's cases, you know, have have articulated.

[01:16:28] Speaker 00:
Okay, thank you.

[01:16:28] Speaker 00:
Let me make sure there's no additional questions.

[01:16:31] Speaker 00:
Thank you, Mr Inchelwood.

[01:16:33] Speaker 02:
Thank you.

[01:16:35] Speaker 00:
Mr Murphy will give you the three minutes you asked for for rebuttal.

[01:16:39] Speaker 00:
Thank you, Your Honor.

[01:16:39] Speaker 00:
Appreciate it.

[01:16:41] Speaker 05:
The position of the government that I heard in the last couple of minutes of argument is scary and breathtaking.

[01:16:47] Speaker 05:
In the government's view, Congress intended that billions of American consumers who happen to buy products that originate abroad may be liable for aiding and abetting, not because they actually carry it across the border.

[01:16:58] Speaker 05:
They haven't gone across the border at all.

[01:17:00] Speaker 05:
All they've done is sat at their computer and ordered a product.

[01:17:04] Speaker 05:
That could not possibly be what Congress intended.

[01:17:08] Speaker 05:
in these statutes.

[01:17:09] Speaker 05:
And that highlights the absolute necessity for a limiting principle when you use words like aid, abet, cause, or induce.

[01:17:18] Speaker 05:
The answer to Judge Walker's question about the duck tongue is absolutely you are not aiding, abetting, causing, or inducing.

[01:17:24] Speaker 05:
Because under the traditional concepts of secondary liability that have been recognized for centuries, at all levels of sorts, you could not be liable because you had no knowledge of the wrongdoing and you did not substantially assist in it.

[01:17:36] Speaker 05:
Now, you could be said to induce the importation in a very broad sense, in the same way that a bank can be said to induce a bank robbery or a depositor could be said to induce bank robbery by having money collected in one place.

[01:17:51] Speaker 05:
This is a great hypothetical from Judge Easterbrook in the Chicago Plaintiff's Lawyers, Chicago Civil Rights Committee versus the Rights List.

[01:18:00] Speaker 05:
But that is not at all a useful meaning of induce or cause.

[01:18:06] Speaker 05:
Focus on induce, that word actually does have a discrete meaning that not only has a mens rea element, but an actual action element.

[01:18:14] Speaker 05:
And if we look at that definition in Black's Law Dictionary, and I'm looking at the seventh edition, because that's the edition that encompasses 2000 and 2002, when these two statutes were passed.

[01:18:25] Speaker 05:
Inducement is what the act or process of enticing or persuading another person to take a certain cause of action.

[01:18:34] Speaker 05:
That's at a much higher level of granularity than some of these hypotheticals we've been passing back and forth about operating a business.

[01:18:43] Speaker 05:
If we divorced inducement from its legal meaning, it's possible to say almost anything induces.

[01:18:52] Speaker 05:
A telephone company induces crime because it makes available some service that makes it easier to commit.

[01:18:58] Speaker 05:
And Discord, a national organization for women,

[01:19:02] Speaker 05:
recognized that induce, just like aid and other secondary liability concepts, has these long-standing culpability elements, or is the long-standing secondary liability worth it takes all of these elements with it?

[01:19:16] Speaker 05:
To address another question posed by Judge Locker, is there any precedent on duty to discover third-party wrongdoing?

[01:19:22] Speaker 05:
There is, and it goes against the government.

[01:19:25] Speaker 05:
It's Investors Research and Howard versus SEC.

[01:19:28] Speaker 05:
to cases from this circuit.

[01:19:31] Speaker 05:
And I can see that.

[01:19:34] Speaker 00:
One question.

[01:19:34] Speaker 00:
So on the on your own Black's law dictionary definition, enticing was one of the words you use, right?

[01:19:40] Speaker 00:
Yeah, is it not fair to think that Amazon fulfillment

[01:19:46] Speaker 00:
entices third-party sellers to import goods into the U.S.?

[01:19:50] Speaker 05:
I think you have to read this in the context of enticing or persuading another person to take a certain cause of action.

[01:19:57] Speaker 05:
A certain what?

[01:19:58] Speaker 05:
A certain cause of action.

[01:19:59] Speaker 05:
Is that what it says, a certain cause of action?

[01:20:01] Speaker 05:
A certain course of action.

[01:20:03] Speaker 05:
I think I miswrote it here.

[01:20:05] Speaker 00:
Yeah, so it actually focuses on the very specific conduct and there's nothing in the record at all about what... But if the certain course of action is sending goods to the U.S., which is exportation from that perspective and importation into the U.S., is it not fair to say that Amazon enticed that course of action?

[01:20:23] Speaker 05:
No, I don't think that's necessarily right because I think you have to look at a very high level of granularity and what is the record on what these three specific sellers... What are their other channels of sales?

[01:20:33] Speaker 05:
There's nothing in the record to indicate that.

[01:20:35] Speaker 05:
We have no idea why these three third party sellers did what they did, whether they did it to, whether they had other sales channels at supermarkets.

[01:20:44] Speaker 00:
Suppose there's a record that's developed that what a third party seller says, the reason I'm doing this is because of Amazon.

[01:20:53] Speaker 00:
Other companies can do something similar, but nobody's like Amazon.

[01:20:56] Speaker 00:
Amazon's the one that's persuading me to send goods to the U.S.

[01:21:00] Speaker 00:
Then would you think that's inducement?

[01:21:02] Speaker 00:
Well, then I think you have to get into the actual culpability of this.

[01:21:07] Speaker 05:
But just on whether it's inducement.

[01:21:08] Speaker 05:
I mean, there may be situations, hypothetically, if there were a record where

[01:21:12] Speaker 05:
If somebody at a company calls up a foreign party and says, hey, I really want your business, I want you to ship it to us in this way, I can see situations where that might constitute the actus reus of inducement, but not satisfy the mens rea.

[01:21:28] Speaker 00:
But if the mens rea only goes to whether there's a violation,

[01:21:33] Speaker 00:
then all we're talking about is the actus reus of inducement cause you know that you're doing the inducement and you know that the goods are going to be imported.

[01:21:41] Speaker 05:
Well, I mean, I think you have to read the mens rea as inherent in the terms aid at pause or induce the general awareness of wrongdoing.

[01:21:50] Speaker 00:
So you need you for, for the, for this, for these purposes, you are reading knowingly back into aid of that.

[01:21:57] Speaker 00:
as opposed to just.

[01:21:58] Speaker 05:
Absolutely.

[01:21:59] Speaker 05:
And the Supreme Board's case in Rosemont cited, I mean, the entire basis of that decision was the distinct intent elements in those words.

[01:22:06] Speaker 05:
So yeah, so those words carry their own distinct intent element.

[01:22:10] Speaker 00:
They do, but it doesn't have to be, aid in a bet can be knowingly doing the thing that's being aiding and abetted, meaning knowingly importing.

[01:22:18] Speaker 00:
Right.

[01:22:18] Speaker 00:
It doesn't have to be knowingly violating, which is in a separate statute.

[01:22:22] Speaker 05:
Yeah, but I think what this board has

[01:22:26] Speaker 05:
focus on on the actual elements of a vetting and so forth and how or some are you have to have the awareness of actual wrong.

[01:22:33] Speaker 00:
All right, make sure you don't have additional questions.

[01:22:38] Speaker 00:
Thank you, counsel.

[01:22:39] Speaker 00:
Thank you to both counsel will take this case under submission.